Sunday, 21 February 2016

The final UK/EU renegotiation deal: legal status and legal effect

Steve
Peers

Is
the deal on renegotiation of the UK’s EU membership legally binding? If so,
what does that mean exactly? In particular, is the deal ‘legally binding and
irreversible’, as David Cameron had pledged? In part, that’s linked to the
substance of the deal, which I have examined already in a post about the immigration
(free movement) aspects. I will write later about the other aspects
(sovereignty, Eurozone and competitiveness); and see also the analysis of the ‘red
card’ for national parliaments by Katarzyna Granat here.

But
in part it’s an issue about the very legal nature and legal nature of the deal
itself. Some on the Leave said have already said that it’s not legally binding. So is it binding? And if so, what exactly is
its legal effect in practice? I’ve
addressed this already in an earlier post about the draft deal, but I’ll now update that analysis (recycling parts of
it) to take account of the final deal.

The
answer to those questions is complicated, because there are several different
parts of the deal, taking different legal forms. For each part, the legal
status depends on several different factors: when the text would be adopted;
who would have to approve it; whether the EU courts have power to overturn it,
and whether they are likely to do so; and whether the text could be repealed or
amended in future. (I am assuming throughout that by ‘irreversible’, David
Cameron meant irreversible without the UK’s consent).

This
blog post looks first at the legal form of the agreement. Then I examine, based
on prior experience, whether the EU can be ‘trusted’ to implement the draft
deal. Finally, I provide, in one table, my assessment indication of the extent
to which each of the parts of the draft deal are ‘legally binding and
irreversible’, based on the factors mentioned above. (There’s a shinier version
of this table on the ‘Full Facts’ website here).

Legal
form of the main deal

The renegotiation deal takes the form of seven legal texts: a Decision of
the EU Member States’ Heads of State and Government (the ‘draft Decision’); a Statement of
the Heads of State and Government (which consists of a draft Council
Decision); a Declaration by the European Council: and four
declarations by the Commission. Implicitly, it also includes three
planned EU legislative proposals, all dealing with the free movement of EU
citizens (the emergency brake on benefits, EU citizens’ non-EU family members
and export of child benefit), which are referred to in these texts. The UK
government will also table some domestic legislation linked to the
renegotiation deal, but since those proposals have not appeared yet I won’t
comment on them for now.

One
important point before we continue: while the title of the deal refers to the
UK only, none of the actual text of the deal applies solely to the UK. So it
would apply to all Member States. That means it’s possible, for instance, that
a proposal which the UK supports could be stymied by other
Member States’ national parliaments (via the Council), using the new ‘red card’
for national parliaments objecting to EU proposals. It is possible, however,
that the UK would be the only Member State aiming to implement some parts of
the renegotiation deal, in particular the ‘emergency brake’ on benefits; and of
course some of the existing opt-outs referred to in the deal only apply to the
UK and one or two other Member States.

Let’s
begin with the easiest parts of the deal (legally speaking): the planned
EU legislation. We know the legal effect of EU legislation, once it’s
adopted: it’s binding and directly applicable (in the case of the two planned
Regulations on in-work benefits and child benefit exports), or binding as to
the result to be achieved, leaving national authorities the choice of form and
methods (in the case of the planned Directive on EU citizens’ non-EU family
members). (See the definitions of EU legislation set out in Article 288 TFEU).
The more difficult question here is the process. Can it be guaranteed that the
proposals will: (a) be made; (b) be adopted; (c) not be struck down by the EU
Court of Justice (CJEU); and (d) not revoked?

It’s
up to the Commission to make proposals. The main Decision of Member States
can’t bind the Commission (more on that below), but the deal includes three
declarations by the Commission, announcing its intention to make these
proposals. For those proposals to be adopted, they must be approved by the
Council (by a qualified majority of Member States) and the European Parliament
(by a majority of the vote, under most variants of the EU legislative process).
Again, the Decision of Member States doesn’t bind the Council or the European
Parliament. But the Council is made up of Member States’ ministers, and in the renegotiation
deal the Member States commit themselves to supporting two of these three
proposals (on child benefit and the emergency brake). It’s odd that there’s no
parallel commitment as regards the third proposal (on EU citizens’ non-EU
family members). The timing of these measures depends on how soon they would be
adopted, although the Commission declares that it will table them after a
‘Remain’ vote, if there is one.

The
renegotiation deal foresees that the new EU law creating an ‘emergency brake’
for EU workers’ in-work benefits would subsequently have to be implemented
following a UK request to use it. It’s a bit vague about the exact details of this
process, to avoid irritating the European Parliament, but it’s clear that the
Council would decide on the UK application. The voting rule isn’t specified,
but it would be legally dubious if the vote had to be unanimous on this (because
it concerns an issue on which vetoes don’t apply). A Commission declaration
states that the Commission is willing to make this implementing proposal; but there
is no commitment from the Member States to support it. The timing would follow
the adoption of the legislation on this topic: it would likely take at least
one month for the UK’s request to be approved.

So
the real question is whether to trust the Commission and Council
(ie the Member States); although it’s also notable that the Member States
haven’t committed themselves to support all aspects of the deal in this area,
but only some of it. I’ll return to that question of trust below, as regards
the deal in general. But it doesn’t even arise as regards the European
Parliament (EP) or the CJEU, as they are not bound by the
deal. It remains to be seen whether the EP will object to some or all of the
legislative plans (this might become clearer closer to the referendum date).
The position of the CJEU would only be clear if a legal challenge reached it.
That would most likely follow from a challenge by an individual to the
implementation of the new legislation, after it’s adopted, via the national
courts. So it would be some years away. I have discussed the possible
challenges to the legality of the changes on free movement law in my separate
post on those issues. For a summary of this analysis, see the table below.

Leaving
aside the question of Court challenges, could the legislation be revoked or
amended, after it was adopted? In principle, that is possible, using the same
legislative procedure: proposal from the Commission, qualified majority in the
Council, and support from the EP. So the UK could not veto this taking place.
But implicitly the Commission’s commitment to make these proposals, and Member
States’ commitment to support at least two of them, suggest this is not going
to happen. Again, this comes back to a question of trust.

The
renegotiation deal also refers to Commission plans to issue ‘guidance’ on
aspects of EU free movement law. This concerns part of the rules on EU
citizens’ non-EU family members (part of those rules would be covered by a new
law). There would also be ‘guidance’ on the issue of criminality of EU
citizens. For the latter point, the Commission’s declaration states that it
will ‘examine the threshold’ relating to expulsion of criminal EU citizens when
the EU citizens’ Directive is revised in future. This is too imprecise to
regard as a commitment.

Next,
the draft Council decision on Eurozone governance.This
measure can be adopted by the Council itself, as part of its powers to govern
its own activity. It does not need to be proposed by the Commission, or agreed
by the European Parliament. It is similar to an existing Council decision,
which provides for delays in the vote if a sufficient number of Member States
have qualms about them. Protocol 9 to the Treaties says that any changes
to such rules must be discussed by consensus; arguably that means that the
Decision could not be amended or repealed without the UK’s consent. However, it’s
not clear if Protocol 9 applies to the decision on Eurozone governance. Since
the draft Decision would not amend the rules of the Treaty on the adoption of
legislation, but only provide for a delayed vote, it seems very unlikely that
the CJEU would annul it.

In
fact, it’s not even clear who would
challenge it: the Member States support it as part of the deal; there seems
little reason why an individual would challenge it in the national courts; and
it would be hard for an individual to find a procedural route to challenge it
in the courts anyway (the CJEU has ruled that procedural rules of the Council
don’t give rise to individual rights). That only leaves the European
Parliament, and this Decision doesn’t appear to be at the top of their concerns
about the deal. Finally, as for timing, the renegotiation deal provides that
the Decision will be adopted once a ‘Remain’ vote is notified (if there is one),
with no further action necessary. The deal also provides for a Treaty amendment
in future on this point; more on that below.

Finally,
the main part of the renegotiation deal: the Decision of Heads of State and
Government. It takes the form of five sections, dealing first of all with
the UK’s four main negotiating objectives: the Eurozone (section A);
competitiveness (section B); sovereignty (section C); and EU free movement
(section D). Section E includes rules on dispute settlement and entry into
force.

First
of all, it should be noted that the Decision is not EU law as such; it’s
international law. It’s often described as a proposed act of the European
Council, which is the EU institution consisting of Heads of State and
Government. But that’s simply not correct: it’s an act of the Heads of
State and Government as such, not the European Council (or any other EU
institution). That distinction might sound like hair-splitting to non-lawyers,
but it has practical legal consequences. (See also the opinion of the EU Council legal service on this Decision).

While
the Decision is not described as a treaty, it could be regarded as a ‘treaty in
simplified form’ (see the broad definition of a treaty in Article 2(1)(a) of
the Vienna
Convention on the Law of Treaties). Certainly the UK government is
going to register it as an international treaty (see Articles 77-80 of that
Convention). This form of legal act is not new to the EU: it was used in 1992,
to encourage Danes to ratify the Maastricht Treaty, and in 2008,
to encourage Irish people to ratify the Lisbon Treaty.

What
are the distinctions between this Decision and EU law? First of all, while the Decision
is binding (as confirmed by the conclusions of the European
Council), since binding effect inherently follows from its status as a treaty,
it is binding under international law, not EU law. Secondly, the Decision
does not as such change EU law, although other elements of the
overall deal would, when implemented: the planned legislation on free movement
issues, and the Council Decision on Eurozone issues. The Decision also contains
rules on the application of EU law in practice (namely, Member States’ voting
in Council after a ‘red card’ is issued by national parliaments) and a
commitment to amend the Treaties in future, as regards the Eurozone governance
and the exemption of the UK from ‘ever closer union’.

Indeed,
the Decision could not have changed EU law as such, without following the
formal procedures to that effect set out in EU law itself. I discussed the
issue of amending EU secondary law above, but the same is true of EU primary law
(the Treaties). The prior Decisions relating to Denmark and Ireland did not
change the EU Treaties, and they could not, because the CJEU
had ruled that the Treaties could only be amended using the procedure set out
within them, in the Defrenne II judgment.
Like the prior decisions, the Decision specifies that it does not amend EU as
such, but interprets it. This is consistent with CJEU case law, which accepted
in the Rottmann judgment that
the previous Decision on Denmark could be used to interpret EU law.

However,
the Decision does include legal obligations for Member States as a
matter of international law; this is fine as long as the particular obligations
don’t conflict with EU law. In the event of any conflict, the primacy of EU law
means that the latter takes precedence over the renegotiation Decision. But is there
any conflict? This is a substantive question, and in any event where the renegotiation
Decision calls for EU secondary law measures to be adopted (the free movement
legislation, the Eurozone Decision) the real question is whether those measures
would themselves breach the Treaties
if adopted. I will examine whether there is any conflict with the Treaties as
regards competitiveness and sovereignty in a subsequent post, but I will
comment on one here: the commitment of Member States to block Council
decision-making if a ‘red card’ is pulled by national parliaments, on the
condition that national parliaments’ concerns are not addressed.

Andrew
Duff has argued that
this breaches EU law, because it infringes the powers of the European
Parliament in decision-making. In my view, this is incorrect. A decision by the
Council to stop discussing proposed EU legislation does not alter the
Parliament’s role. It’s always open to the Council to stop
discussing proposed legislation if there is insufficient interest in a proposal
or for any other reason, and it’s not rare for it to do so. Every year, the
Commission withdraws proposals because it has given up hope that the Council
will ever agree to them (for the most recent such decision, see here).
The EP can block proposed legislation too, where the ‘ordinary legislative
procedure’ applies; it just does so less frequently than the Council.

A
subtler argument is that this clause in the Decision in effect amends the
Treaty (and so is therefore inapplicable due to the conflict with EU law)
because it introduces a new voting rule in the Council without
amending the Treaty to that effect. It’s more problematic than the new rule on delaying Council
voting as regards Eurozone issues, since that latter rule doesn’t block the
adoption of a proposal, and follows an existing secondary law precedent.
However, as with a comparable clause in the ‘fiscal compact’ treaty, an
agreement by Member States to coordinate their voting in
Council does not amend the Treaties, whether it takes the form of an informal
agreement (as it more often does) or a formal treaty to that effect. Even if
this rule did breach EU law, how could the primacy of EU law be enforced in
this context anyway? By a national court, or the CJEU, telling a
Member State to vote a way it didn’t want to vote in the Council? This would be
an unprecedented incursion into the relationship between national governments
and national parliaments, which the Treaties recognise (in the Protocol on
national parliaments) is a matter for national law alone to regulate.

As
for the Treaty amendment process, it’s correct to say (as Andrew Duff does)
that that the Treaty gives a role to
the Commission and EP. But let’s not overstate that role: neither of them can
block Treaty amendments, in most cases. The only exception is Treaty amendments
which solely concern more majority voting, or more powers for the EP. But the renegotiation
deal does not call for either of that special sort of Treaty amendment, but
(implicitly) for the usual procedure to amend the Treaties.

Otherwise,
the EP’s sole power is to insist that there has to be a fully-fledged
‘Convention’, with delegates from the EU institutions, national parliaments and
national governments, to discuss proposed Treaty amendments. But the EP can’t
set the agenda for the Convention, or determine its outcome. Anyway, that
outcome is not binding upon the Member States, which then hold an
Inter-Governmental Conference (IGC) to negotiate the final text – which the EP
cannot reject. The result of that Convention will probably influence the
outcome of the IGC, but doesn’t bind it.

What
would actually happen, if a ‘Convention’ is established? The last Convention,
in 2002-3, had a broad agenda, and in practice the EP was able to steer it
toward a highly integrationist conclusion. But any Convention convened in (say)
2017 would now include a lot more national parliamentarians critical of the EU,
from every perspective. They might well want to drive the Convention towards a
stronger version of the ‘red card’ for national parliaments, as well as
repatriation of powers from the EU. Anyway, the wording of the Treaty suggests
that the agenda of the Convention is limited to the issues originally tabled
for Treaty amendment.

So
the real impediment to Treaty amendments is not at the EU level. Rather, it’s
the risk of rejection in national parliaments (and occasionally referendums),
with a further long-stop risk of rejection by national constitutional courts.
It’s impossible to guess at this point what would happen to the Treaty
amendments foreseen by the renegotiation Decision at national level. So there
is no legal certainty that those Treaty amendments would definitely be
approved.

On
the other hand, the renegotiation Decision itself does not need national
parliamentary approval, at least as a matter of EU law (whether some Member
States’ law might require it is a separate question). Nor does it need
any sort of approval from any of the EU’s institutions – although the planned
legislation referred to in the Decision does, of course, need those
institutions’ involvement. Since it’s not part of EU law, the validity of the renegotiation
Decision could not be challenged directly before the CJEU, although it is
possible that a national court could ask whether national implementation of EU
based on the renegotiation Decision was in conflict with EU law.

As
for the timing, the renegotiation Decision was apparently already formally adopted
on 19 February. The text of Section E of the Decision says it will come into
force automatically as soon as a ‘Remain’ vote (if there is one) is notified.
The Decision is irreversible in the sense that the UK government has to consent
to amend it or repeal it; this is explicitly confirmed by the European Council conclusions. There is no provision for a Member State to denounce
it, or any other indication that it’s possible to do so; therefore it is
subject to the general rule in Article 56 of the Vienna Convention that a
treaty cannot be denounced in the absence of a clause to that effect.

However,
the distinction between the renegotiation Decision and EU law does mean that
there is a gap in the Decision’s enforceability.
Section E of the Decision refers to bringing a dispute between Member States
about the application of the Decision before the European Council. But unlike
the fiscal compact Treaty, there is no provision on bringing a dispute before
the CJEU, which could then impose fines. So despite the binding nature of the renegotiation
Decision, there is no clear mechanism for making it stick. This brings us back
to the issue of trust, discussed further below.

Finally,
some commentators on my previous blog posts on this issue raised the
question of whether Heads of State and Government could still act outside the
framework of the EU Treaties, given that the Treaty of Lisbon upgraded the
status of the EU institution in which they meet – the European Council. In my
view, that change in EU law did not transfer the capacity of Heads of State and
Government to act to the European Council, except where the Treaty amendments
did that expressly (for instance, as regards appointments to the European
Central Bank). This follows from the principle of ‘conferred powers’ set out in
the Treaties: in the absence of any power for the European Council to adopt
anything like the renegotiation Decision, it couldn’t have adopted it.

Can
the EU be trusted?

As
noted already, the EU has agreed Decisions like the renegotiation Decision twice
before, as regards Ireland and Denmark. In those Decisions, the EU promised a
Treaty amendment to Ireland, and delivered it in the form of a protocol several
years later. It didn’t expressly promise a Treaty amendment to Denmark, but
delivered one anyway, as part of the Treaty of Amsterdam (another Protocol,
attached to the Treaties, which has since been amended). It’s sometimes
suggested that the EU tricked Denmark because the CJEU later ignored the Danish
opt-out of EU citizenship. But this is a myth: the fact is that Denmark never
opted out of EU citizenship. The 1992 Decision on Denmark simply
contained clarifications relating to the meaning of EU citizenship (see Section
A of that decision), not any form of opt-out.

Another
Treaty amendment (in the form of a protocol), relating to the legal effect of
the EU Charter of Fundamental Rights, was promised to the Czech Republic if it
ratified the Treaty of Lisbon. In this case, there was no Decision of Member
States’ Heads of State and Government, but the draft Protocol and the promise
were set out in conclusions of the European Council.
The Protocol was subsequently formally proposed,
but it was not pursued after a new Czech government withdrew the
previous government’s request. It’s possible that the Czech government decision
was influenced by the European Parliament, which had voted against the draft
Protocol. But as noted above, the EP does not have a veto over Treaty
amendments: indeed, even after the EP's objection, the Council recommended that
the Treaty amendment process get underway.

The
most the EP can do to stop Treaty amendments is to demand that a 'Convention'
be established to discuss them. But remember: the Convention process does not
give the EP any kind of veto over a Treaty amendment either. Ultimately a
subsequent Inter-Governmental Conference decides what the final text of those
Treaty amendments will be. So if the Czech government had really wanted to
insist upon the adoption of its Protocol, it would have got it in the end.

For
those who really don’t trust the EU to deliver on the renegotiation package,
there’s always one further option. The UK government could commit itself, perhaps
in the form of an Act of Parliament addressing the renegotiation deal, that it
will report regularly on the implementation of that deal. If the key aspects of
the deal are not in fact implemented for any reason, and there is no prospect
that they will be, it would, as I’ve argued before,
be reasonable to argue for another referendum.

Overview:
is the renegotiation deal legally secure?

It
follows from the above that the renegotiation
deal is binding – and anyone who says otherwise (without clarification)
is just not telling the truth. But there are two significant caveats to that: (a)
parts of the deal, concerning the
details of the changes to free movement law and Treaty amendments, still have
to be implemented separately; and (b) there are limits to the enforceability of the deal.

The
following table lists the binding elements of the renegotiation deal and
summarises how enforceable they are and whether they need further implementation
(and if so, what exactly this entails).

Decision
of Heads of State and Government (in general)

Binding:
in international law

In
effect: after Remain vote notified

Further
approval needed: No, unless national law requires parliamentary approval in
some States

CJEU
vulnerability: Zero; although CJEU might disagree with some interpretations of
EU law

Reversible
without UK consent: No

Commitment
to amend treaty

Binding:
in international law

In
force: after Remain vote notified

Further
approval needed: Yes, from national parliaments and possibly electorates;
Commission, European Parliament have non-binding role in
Treaty revision

CJEU
vulnerability: Zero; although challenges under national constitutions are
possible

Reversible
without UK consent: No

Commitment
to apply ‘red card’ for national parliaments

Binding:
in international law

In
force: after Remain vote notified

Further
approval needed: No

CJEU
vulnerability: Low

Reversible
without UK consent: No

Council
Decision on voting on financial issues

Binding:
in EU law

In
force: after adoption of this Decision, on date that Remain vote is notified

Further
approval needed: Council has to adopt; no role for any other EU institution or
national parliaments

CJEU
vulnerability: low

Reversible
without UK consent: No (arguably)

Legislation
on free movement issues (3 measures)

Binding:
in EU law

In
force: after proposals tabled and adopted, which is due after Remain vote is
notified

Further
approval needed: Yes. Commission proposals (political commitment to make them);
Council approval (political commitment from Member States to support 2
proposals); European Parliament (position unknown)

18 comments:

Is there a question here about the validity of the main Decision of Heads of State and Government, in that if it does constitute a treaty in simplified form as per Article 2(1)(a) of the Vienna Convention on the Law of Treaties, does that not then become subject to the different national ratification procedures in each of the member states?

The UK clearly has no issue with this on account of the crown prerogative but I understand others (such as Germany that constitutionally requires the President's signature) are in no position to sign any such treaties.

I'm guessing this must have come up before, perhaps in the case of the Danes and the Irish but do you have a view?

Good point. In the opinion of the Council legal service (I've added the link above, but it's here: http://www.parliament.uk/documents/commons-committees/european-scrutiny/0413_001.pdf) this won't need national parliamentary ratification. I haven't checked the accuracy of this - only a team of comparative constitutional lawyers could do that - but presumably he has had some discussions with national government lawyers about this. I do mention the possible need for national parliamentary approval in the table.

It means that states have a legal obligation to give effect to it at the international level, in accordance with the law of treaties. But I realise that there is an important question of what that means in concrete terms, just as there is with other international treaties (such as, say, a post-Brexit UK/EU treaty), especially as regards whether EU law is actually going to change or not. That's exactly why I try to spell out those details here, since merely saying that it's 'binding' obviously does not tell the full story.

That is what I thought you meant: but what use is the word "binding" in this context? Nothing is being "bound" in any meaningful way: a new position can be asserted, and nobody is obliged to do anything. Binds are things that tie, not dangle.

How does "binding in international law" differ from saying "exist" or "noted"?

You could say the same of any international treaty. Many have no sanctions mechanism, or there are ways in which States could ignore sanctions which do exist. Domestic laws are equally irrelevant if it becomes feasible in practice for enough people to flout them without punishment. This is really an international relations argument about the nature of international law (or a socio-legal argument about 'law' in general). So the subtler point is that by calling something 'binding' it is more likely that actors will comply with it than if it had a different title, because they will want others to take the same approach to the word 'binding' on a different occasion. And along with that there is the broader context: the actors in this legal process are surely aware that non-compliance will increase the possibilities of another UK referendum, which presumably they wish to avoid given that they agreed to this deal in the first place?

Your last point suggests "politically binding" which of course would be a different from the "legally binding" phrase I am querying.

I think for lawyers to assert something is "legally binding at international law" can be misleading. I realise that there is a distinction between "binding" and enforceability. But that distinction will not be known to most people following the debate.

Thanks for the discussion. If a country says 'henceforth we will not comply with this particular treaty clause, but we will not actually denounce the treaty' what will happen? Some treaties provide for sanctions and remedies, some don't; but how do you ensure specific performance? The EU system comes closer to that than most international systems because national courts are enlisted in to the process. But the CJEU is always coaxing and cajoling them to ensure their willingness to do so, and there are endless variations of passive-aggressive responses to that. I think my point is that 'legally binding' in practice means 'politically binding' for any treaty. To single out this particular text to make that point is misleading in its own way. It isn't *as* binding as the EU Treaties, which prevail in the event of a conflict; but the same will likely be true of any UK/EU post-Brexit treaty.

Let me add to that, building on a point above. In my view, using the words 'legally binding' are likely to increase compliance with a text. That's why domestic, EU and international legal systems make the distinction. And to that extent, calling something 'legally binding' is different in practice from *not* calling it legally binding.

All this is another way of saying that the enforceability of this text is limited. But when the parties *call* it legally binding, and deposit it as a treaty, a matter of law, it's really impossible not to conclude that it's legally binding. I accept that this label doesn't magically overcome limits on enforceability; indeed I discuss all of those limits in detail in this post. But the critics of the deal ought to admit that it is indeed 'legally binding'. The very fact that they don't want to do that demonstrates my point that those two words are perceived to have practical significance.

Is there any information available on different positions of the Council regarding the proposal on restricting the free movement of non-EU family members? E.g. which countries support the proposal as it is and which don't.How (meaning the way, not the outcome) would the Council vote on this matter?

Hi Steve. Will these proposals still go ahead if the UK does indeed leave the EU. Does tabled mean postponed."The timing of these measures depends on how soon they would be adopted, although the Commission declares that it will table them after a ‘Remain’ vote, if there is one."